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23-0815_RIVER STREET MARKETPLACE, LLC_Agenda Report_E7City of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Thomas Toman, Public Works Director PREPARED BY: Joe Parco, City Engineer Jeremy Hohnbaum, Senior Civil Engineer DATE: August 15, 2023 SUBJECT: License Agreement with Whittier and Sorensen LLC (River Street Marketplace Project) for Construction and Maintenance of Improvements on Public Property (APNs 649-201-02 and 649-201- 03); and, Finding Said Action is Categorically Exempt from the California Environmental Quality Act Pursuant to State CEQA Guidelines, Section 15301 RECOMMENDATION: 1.Approve and authorize the City Manager to execute a License Agreement with Whittier and Sorensen LLC for the improvement and maintenance of landscape, irrigation, and water quality Best Management Practices (BMPs) associated with the River Street Marketplace Project located on public property that serves as public right-of-way on Paseo Adelanto; 2.Direct the City Clerk to record the Landscape Maintenance Agreement with the County of Orange; and, 3.Find that the recommended action is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines, Section 15301. EXECUTIVE SUMMARY: The applicant, Whittier and Sorensen LLC, is seeking approval to install and maintain landscape, irrigation, hardscape and water quality improvements within City-owned parcels along Paseo Adelanto. The area is adjacent to the River Street Marketplace 8/15/2023 E7 City Council Agenda Report August 15, 2023 Page 2 of 3 Project, located at 31825 Los Rios Street, which is scheduled to open in Fall 2023. A location map with an overview of the proposed enhancements is included as Attachment 1. The applicant’s intent is to enhance the aesthetic appearance of the parkway, improving the frontage, as well as installing water quality improvements to meet regulatory requirements related to the River Street development. The proposed improvements would be maintained by the applicant under the proposed License Agreement (Attachment 2). Additionally, any existing utilities would be protected in place and maintained by the respective owner. The locations for the proposed improvements are shown in Exhibit A of Attachment 2. DISCUSSION/ANALYSIS: The River Street Marketplace Project consists of an approximately 5.86-acre mixed-use development to be located at 31825 Los Rios Street. The grading permit application and street improvement plans included landscape and hardscape improvements both on the private property portion of the project within 31825 Los Rios Street, as well as adjacent to the private property on the City-owned parcels along Paseo Adelanto. To allow the applicant to construct and maintain the proposed improvements on City property, the City must approve a License Agreement (Attachment 2) that details the various maintenance obligations, such as debris and litter removal, watering and trimming of vegetation, weed removal, trimming trees, and maintenance of water quality improvements. FISCAL IMPACT: The Public Works Department is currently responsible for the landscape maintenance in this area. Pending approval of the proposed License Agreement, the applicant would become the responsible party for that maintenance. As a result, the City would experience minor cost savings with respect to irrigation, landscape and tree trimming maintenance. Additionally, the applicant would be required to provide general liability insurance and name the City as an additional insured on an annual basis. ENVIRONMENTAL IMPACT: In accordance with the California Environmental Quality Act (CEQA), the recommended action would be exempt from CEQA, per Section 15301, Class 1 (h), Maintenance of Existing Landscape. Here, the entire project, including the proposed License Agreement, is exempt per Section 15301 because it involves maintenance of existing landscaped areas. Establishing a maintenance agreement with Whittier and Sorensen LLC to maintain improvements within the public right-of-way, previously reviewed and approved through Code Amendment (CA) 16-003 (Final Environmental Impact Report (SCH #2018011019)), is categorically exempt from CEQA. City Council Agenda Report August 15, 2023 Page 3 of 3 PRIOR CITY COUNCIL REVIEW: • On October 15, 2019, the City Council adopted a Resolution (19-10-15-01) Certifying the Final Environmental Impact Report, Adopting the Mitigation Monitoring Reporting Program, Approving General Plan Amendment (GPA) 18- 002 and Approving Flood Plain Land Use Permit (FP) 16-003. The City Council also adopted Ordinance No. 1071 Approving Code Amendment (CA) 16-003; and Ordinance No. 1072 Approving Development Agreement (DA) 18-002 (Assessor Parcel Numbers 121-160-22, 28, 49). COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: • On September 24, 2019, the Planning Commission considered the modified project plans and adopted two Resolutions recommending that the City Council certify the Final Environmental Impact Report (FEIR), adopt the Mitigation Monitoring Reporting Program, a code amendment, and approve an Architectural Control, Grading Plan Modification, and Sign Program. NOTIFICATION: Dan Almquist, 31791 Los Rios Street LLC Douglas Dumhart, 3-D Advisors, LLC Interested Parties Notification List ATTACHMENT(S): Attachment 1: Project Location Map Attachment 2: Proposed License Agreement 92 feet ATTACHMENT 1 PAGE 1 OF 2 License Area Overview and Loca�on Improvements within the public right of way consist of: •Hardscape Concrete Sidewalks (Adjacent to Paseo Adelanto Shaded in Gray Below) •New Asphalt Concrete Street Paving (Within Paseo Adelanto) •Landscape and Irriga�on (Within the Green Areas Below) Na�ve landscape within the green areas above is being constructed per the landscape plans. Examples are shown in the images below and consist of: •California Sycamore and Mesa and Coast Live Oak Trees •A variety of Ornamental Grasses and Shrubs ATTACHMENT 1 PAGE 2 OF 2 Page 1 of 12 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk EXEMPT FROM RECORDING FEES (Government Code §§6103 & 27383) APN: 649-201-03 Space Above Line for Recorder’s Use Only LICENSE AGREEMENT FOR CERTAIN PERMITTED ACTIVITIES ON PUBLIC PROPERTY THIS LICENSE AGREEMENT (this "Agreement") is made and entered into this __ day of __________, 2023 (the “Effective Date”), by and between the CITY OF SAN JUAN CAPISTRANO, a California municipal corporation ("City”), and RIVER STREET MARKETPLACE LLC, a California limited liability company (the “Licensee”). Each party to the License is at times referred to individually herein as a “Party” and collectively as the “Parties.” W I T N E S S E T H WHEREAS, City is the owner of that certain property (APN 649-201-03) more particularly described on Exhibit “A” attached hereto and incorporated by reference herein (collectively, the “City Property”), which contains the public right-of-way for Paseo Adelanto and associated landscape improvements located over the easterly portion of such property; and, WHEREAS, Licensee has secured the following land use entitlement approvals: Code Amendment (CA) 16-003; Architectural Control (AC) 16-029; Grading Plan Modification (GPM) 16-014; and Floodplain Land Use Permit (FP) 16-003 (together, the “Entitlements”) to construct a commercial center and associated improvements (hereinafter, the “River Street Marketplace” or the “Project”) on approximately 5.86 acres (APNs 121-160-22 and 121-160-28) (the “Licensee Property”); and, WHEREAS, the Entitlements require the Licensee to make Street and Storm Drainage Improvements known as Street Improvement Plans (SIP 20-003) on that certain portion of the City Property that is adjacent to the Licensee Property; and, WHEREAS, the final Street and Drainage Improvements Plans (SIP 20-003) will result in certain landscape improvements on the City Property as depicted in cross hatch on Exhibit “B” attached hereto (such portion of the City Property, the “License AREA”); Page 2 of 12 and, WHEREAS, the Entitlements also require Licensee to prepare a Water Quality Management Plan (“WQMP”) in compliance with the City’s January 31, 2019, Jurisdictional Runoff Management Plan for City’s implementation of the Regional National Pollutants Discharge Elimination System Permit (“NPDES Permit”); and, WHEREAS, the Final Approved WQMP identifies two storm water catch basins with full trash capture inserts within the street improvements requiring tri-annual maintenance (every four months) of the full trash capture inserts; and, WHEREAS, Licensee seeks to enter upon the License AREA for the purpose of installing and maintaining improvements associated with the River Street Marketplace, including irrigation, landscaping, hardscape, pay gate, and full trash capture inserts (hereinafter, “Permitted Activities” and the improvements themselves, the “Improvements”) as required by the Entitlements and/or shown on Street and Storm Drainage Improvement Plans (SIP20-003); Precise Grading Plans (B20-0545); Site Improvement Plans (B20- 0546); and Landscape Improvement Plans (B20-0547) collectively (“Permits”), all as further described in Section 3 below; and, WHEREAS, City desires to grant Licensee permission to engage in said Permitted Activities upon the License AREA. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND OBLIGATIONS OF THE PARTIES HEREIN CONTAINED, THE PARTIES ENTER INTO THIS LICENSE AGREEMENT. Section 1. Grant of License. City hereby grants to Licensee an irrevocable right and license to enter upon the License AREA to conduct the Permitted Activities subject to the conditions set forth in this Agreement. Such license is intended by the Parties to be permanent but shall not be deemed to create an easement, lease, or any property interest in the License AREA. In consideration for such license, Licensee shall be solely responsible for the maintenance, repair and upkeep of the License AREA at the sole cost of the Licensee. Section 2. Term of Agreement; Covenant that Runs with the Land. This Agreement shall take effect upon the Effective Date and shall be recorded in the Official Records of Orange County. This Agreement shall continue in effect until both Parties mutually terminate this Agreement in writing and any lender with a security interest in or encumbrance upon the Licensee Property (hereinafter “Lender” or “Licensee’s Lender”) joins in such termination. This Agreement shall be a covenant that runs with the land. If this Agreement is terminated by the mutual written agreement of the Parties and Lender as required hereunder, Licensee shall have no further obligations to conduct the Permitted Activities and shall take all actions necessary to turn over all right and title to Page 3 of 12 the Improvements to City. All rights, benefits, licenses, and privileges of every character hereby granted, created, reserved, or declared, and all impositions and obligations hereby imposed, are intended to be appurtenant to the Licensee Property as the dominant tenement against the City Property as the servient tenement, shall be deemed and taken to be covenants running with the land and equitable servitudes, and shall be binding upon and shall inure to the benefit of any fee owner, grantee, purchaser, or any person or entity having at any time any interest or estate in the Licensee Property and the City Property as though the provisions of this Agreement were recited and stipulated at length in each and every deed of conveyance, purchase contract or other instrument of transfer, and shall inure to the benefit of each such owner, grantee, purchaser, occupant, mortgagee, or other person or entity having at any time any interest or estate in any of the Licensee Property and the City Property. Section 3. Permitted Activities. Licensee is authorized to prepare the License AREA to receive the Improvements and to install, maintain, and operate the Improvements. Preparation of the License AREA includes, but is not limited to, clearing for installation of irrigation systems, landscape material, mulch, and hardscape improvements. On-going operational activities include, but are not limited to, irrigating, irrigation system repairs, clearing, cleaning, trimming, pruning, weeding, fertilizing, and replacing plant material as warranted. Prior to Licensee installing any future improvements that may require the removal of existing Improvements or are otherwise not explicitly authorized by the Entitlements or the aforementioned Permits, Licensee shall provide written notice to City of such desire and City, in its sole discretion, shall determine whether such proposed future improvement requires an amendment to this Agreement. Licensee shall obtain written approval from the City prior to implementing or installing any new improvements not explicitly authorized by the Permits. In no event shall the Permitted Activities impede or conflict with normal or emergency maintenance of either the existing City-maintained Street, curb and gutter, sidewalk, street lights, signage, or the SMWD fire hydrant located within or about the License AREA (“City-Maintained Improvements”). If any City-Maintained Improvement is damaged due to the negligence or willful misconduct of Licensee, its agents, employees, contractors, subcontractors, or licensees, the repair (or cost thereof) of such damage shall be the responsibility of Licensee. Licensee shall ensure its installation and/or maintenance activities are compliant with all State and Federal regulations relating to the use of pesticides and/or herbicides. Licensee shall ensure appropriate water quality best management practices (BMPs) are implemented during all installation and/or maintenance operations to mitigate pollutants from entering the storm drain system. Page 4 of 12 Licensor shall not use the License AREA for any purpose that is inconsistent or conflicts with the Permitted Activities. Licensor shall not grant any right to any person that is inconsistent or conflicts with the conduct of the Permitted Activities by Licensee in the License AREA. Section 4. Compliance with Laws. Licensee's rights hereunder shall be conditioned upon, and Licensee shall, at its sole cost and expense, comply with each and every federal, state, and local law, regulation, standard, court decision, ordinance, rule, code, order, decree, directive, guideline, permit, and permit condition, together with any declaration of covenants, conditions, and restrictions that are recorded in any official or public records with respect to the License AREA or any portion thereof, each as currently existing and as amended, enacted, issued, or adopted from time to time, that are applicable to the Permitted Activities to be performed within the License AREA. Section 5. No Duty to Warn. City has no duty to inspect the City Property or the License AREA and no duty to warn Licensee or any person of any other latent or patent defect, condition, or risk that might be incurred in entering upon the City Property or the License AREA. Licensee acknowledges that neither City nor any employee, agent, or representative of City has made representations or warranties concerning the condition of the City Property or the License AREA. All persons entering the City Property or the License AREA to perform any activity contemplated by this Agreement, carry out any responsibility required by this Agreement, or exercise any right conferred under this Agreement do so at his/her/their own risk. Section 6. Permits and Approvals; Standard of Work. Nothing herein shall be construed to give Licensee any approvals normally required under City’s ordinances or local regulations, and Licensee, at its sole cost and expense, shall obtain all permits and authorizations required in order to engage in the Permitted Activities. Licensee shall comply, and shall cause its agents and representatives to comply, with all laws, codes, rules, regulations, and permits applicable to the Permitted Activities. All Permitted Activities shall be performed in accordance with the highest standards and practices in the industry. Section 7. Failure to Perform. 7.1. Notice of Violation; Licensee’s Obligation to Cure. 7.1.1. Should Licensee violate any provision of this Agreement or fail to perform under this Agreement in any way, City shall provide Licensee with written notice describing the violation or failure to perform (“Notice of Violation”). Page 5 of 12 7.1.2. Upon receipt of a Notice of Violation, Licensee shall diligently work to commence the cure of such violation within seven (7) days of effective notice (pursuant to Section 10 hereof) of the Notice of Violation and shall diligently and in good faith continue to cure such violation to completion. Lane closures and/or any work performed outside of the License AREA but in the public right of way will require an encroachment permit and traffic control measures as needed before performing said work and may result in additional insurance limits being required at the sole discretion of the City from what is noted in Section 9 below. Work performed by Licensee within the public right of way shall only be performed by appropriately licensed contractors. Licensee will be responsible for 100% of the repair costs within the License AREA, including any repair costs within public property, the public right of way, or adjacent private property that are caused or created by any acts, omissions, and/or operations undertaken in or about the License AREA by any Licensee Party (as defined below). 7.1.3. In the event of a violation that requires immediate attention in order to respond to, protect against, and/or prevent a public health and safety concern and/or damage to adjacent public or private property or loss of life, or to ensure compliance with the Multiple Separate Storm Sewer System (MS4) Permit, City will endeavor to notify Licensee by phone and email, as well as pursuant to Section 10, and Licensee shall diligently work to commence the cure of such violation within 24 hours of notification by City and shall diligently and in good faith continue to cure such violation to completion. 7.2. City Performance; Remedy. 7.2.1. If Licensee fails to commence the cure of any violation within the applicable time periods set forth in Sections 7.1.2 or 7.1.3, or, following the commencement of any cure efforts, fails to diligently and in good faith continue to cure such violation to completion per Section 7.1.2 or 7.1.3, then, at Licensee’s sole expense, City may immediately undertake to perform Licensee’s obligations by providing written notice to Licensee. 7.2.2. At any time upon or after completion of such work by City, City may invoice Licensee for the out-of-pocket costs incurred by City to perform such obligations. City shall submit such invoice together with copies of receipts or other evidence substantiating the costs incurred by City, but nothing in this section shall obligate City to provide, nor entitle Licensee to receive, any particular form or type of evidence. Within thirty (30) days of issuance of such invoice, Licensee shall pay to City the invoice amount in full. 7.2.3. If Licensee fails to pay City’s invoices per Section 7.2.2, then City shall have the right but not the obligation to record and enforce a lien or other encumbrance against the Licensee Property in order to recover its costs; provided, however, such lien shall in all events be subordinate to the lien priority of any Lender with a lien or security interest in Licensee Property whether by way of a deed of trust or mortgage, and upon any foreclosure or deed in lieu of foreclosure by such Lender, such lien in favor of Licensor shall be extinguished but the personal obligation of Licensee to Page 6 of 12 pay the amounts that were secured by the lien shall continue in full force and effect. The Lender or other party that acquires title by foreclosure or by a deed in lieu of foreclosure shall not be obligated to cure any breach of this Agreement that is of a type that is not practical or feasible to cure. The Lender or other party that succeeds to title to the Licensee Property shall be obligated to pay amounts that are incurred by Licensor during the time that the Lender or other party holds title to the Licensee Property and the Licensee Property shall be subject to the lien in favor of Licensor to secure such amounts. 7.2.4 Licensor’s remedies for any breach or violation of this Agreement by Licensee shall include specific performance, the recovery of damages and the other remedies specified in this Agreement, including without limitation the right to cure at the expense of Licensee with a lien against the Licensee Property to secure recovery of the costs expended; provided, however, Licensor shall in no event have the right to terminate this Agreement by reason of a breach or violation of this Agreement by Licensee. No breach or violation of this Agreement by Licensee shall defeat or render invalid the lien of any Lender pursuant to a deed of trust or mortgage. 7.3 No Waiver. The failure of City to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of City’s rights nor deprive City of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Section 8. Indemnification. 8.1. Indemnification of City by Licensee. Licensee shall defend, indemnify, and hold City, its officials, officers, employees, and agents (the “Indemnified Parties”) free and harmless from any and all liability from loss, damage, or injury to property or persons, including wrongful death, in any manner to the extent arising out of or incident to acts, omissions, and/or operations undertaken in or about the License AREA by Licensee, its officials, officers, personnel, employees, invitees, licensees, guests, contractors, and/or subcontractors (as well as Licensee’s contractors’ and/or subcontractors’ officials, officers, employees, and agents) (each, a “Licensee Party”), including any claims, damages, injuries, costs, losses, fines, or charges from or attributable to the acts or omissions of Licensee, its officials, officers, personnel, employees, invitees, guests, contractors, and/or subcontractors, (as well as Licensee’s contractors’ and/or subcontractors’ officials, officers, employees, and agents) attributable to any repair, cleanup, detoxification, removal, closure, or other plan concerning any pollutant, contaminant, hazardous substance, hazardous waste, household hazardous waste, solid waste, or other waste Licensee or Licensee’s contractor/subcontractor has generated, collected, stored, transported, or disposed, in connection with this Agreement . Further, Licensee shall defend at its own expense, including reasonable attorneys’ fees, the Indemnified Parties in any legal action to the extent such action arises from such acts, omissions, and/or operations. 8.2. Licensee’s obligations under this Section 8 shall apply regardless of whether or not City has prepared, supplied, or approved any plans, activities, or uses Page 7 of 12 allowed by this Agreement, and regardless of whether or not any insurance policies shall have been determined to be applicable to any of such damages or claims for damages. City does not waive any rights against Licensee that City may have under the indemnification provision in this Section 8 because of City’s acceptance of any security deposits or insurance policies. 8.3 Licensee agrees that Licensee’s performance (including the performance of any Licensee Party) of the Permitted Activities on or about the City Property and the License AREA shall at all times be at Licensee’s sole and exclusive risk. 8.4. Survival. Licensee’s indemnification obligations in this Section 8 shall survive the termination of this Agreement. Section 9. Insurance. Prior to the commencement of any work pursuant to this Agreement, Licensee (if performing work itself) or Licensee’s contractors and/or subcontractors shall furnish to City satisfactory evidence of an insurance policy written upon a form and by a company (which meets with the approval of City) insuring City, its officials, officers, agents, and employees against loss or liability which may arise during the performance of Licensee’s obligations under this Agreement or which may result from any of the work herein required to be done, including all costs of defending any claim arising as result thereof. For the avoidance of doubt, any obligation of “Licensee” set forth in this Section 9 may be performed or satisfied by any contractor of Licensee that performs any work contemplated in this Agreement, provided the Licensee’s contractor abides by all requirements set forth in this Agreement. 9.1. Commercial General Liability 9.1.1. Licensee shall take out and maintain, during the performance of all work under this Agreement, Commercial General Liability Insurance, in amounts not less than specified herein, and in a form and with insurance companies rated A- VII or better by AM Best. 9.1.2. Coverage for Commercial General Liability insurance shall be at least as broad as the following: 9.1.2.1. Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. 9.1.3. Commercial General Liability Insurance must include coverage for the following: a. Bodily Injury and Property Damage b. Personal Injury/Advertising Injury c. Premises/Operations Liability d. Products/Completed Operations Liability Page 8 of 12 e. Aggregate Limits f. Explosion, Collapse and Underground (UCX) exclusion deleted g. Contractual Liability with respect to this Contract h. Broad Form Property Damage 9.1.4. The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability except the ISO form contractual language; (2) cross liability exclusion for claims or suits by one insured against another; or (3) products/completed operations liability. 9.1.5. The policy shall give City, its officials, officers, employees, and agents additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. 9.1.6. The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to reasonable approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. 9.1. Automobile Liability 9.1.1. To the extent Licensee has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Licensee shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies rated A- VII or better by AM Best. 9.1.2. Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). 9.1.3. The policy shall give the City, its officials, officers, employees, and agents additional insured status. 9.1.4. Subject to reasonable approval by the City, the automobile liability insurance policy may require deductibles (but not a self-insured retention), provided that such deductibles shall not apply to the City as an additional insured. Automobile liability limits shall be increased at the sole discretion of the City when lane closures are required for traffic control. Page 9 of 12 9.2. Workers’ Compensation/Employer’s Liability 9.2.1. Licensee certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. 9.2.2. To the extent Licensee has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Licensee shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Licensee shall require all subconsultants/subcontractors to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. 9.3. Minimum Policy Limits Required 9.3.1. The following insurance limits (which may be achieved through a combination of general liability and umbrella insurance policies) are required for the Agreement: Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury, and property damage. Automobile Liability $1,000,000 combined single limit Employer’s Liability $1,000,000 per accident or disease Worker’s Compensation Statutory Limit 9.3.2. Defense costs shall be payable in addition to any limits. 9.3.3. Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. 9.4. Evidence Required Prior to execution of the Agreement, the Licensee shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance Page 10 of 12 required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. 9.5. Policy Provisions Required 9.5.1. Licensee shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Licensee shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Licensee shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. 9.5.2. The Commercial General Liability Policy and Automobile Policy (if applicable) shall contain a provision stating that Licensee’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. 9.5.3. The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Licensee shall maintain such coverage continuously until the later of (i) Licensee’s sale or transfer of the Licensee Property or (ii) the date that is three (3) years after the initial installation of the Improvements. Licensee shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. 9.5.4. Worker’s compensation insurance coverages shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, or shall specifically allow Licensee or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants/subcontractor. Page 11 of 12 9.5.5. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Licensee from liability in excess of such coverage, nor shall it limit the Licensee’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. 9.6. Qualifying Insurers 9.6.1. All policies required shall be issued by acceptable insurance companies, as reasonably determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 9.7. Additional Insurance Provisions 9.7.1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by Licensee, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Licensee pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 9.7.2. If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Licensee or City will withhold amounts sufficient to pay premium from Licensee payments. In the alternative, City may cancel this Agreement. 9.7.3. The City requires evidence that the Licensee and their Subcontractors have insurance policies in effect throughout the duration of the Project, and the City is named as an additional insured. 9.7.4. Neither the City nor any of its officials, officers, employees, or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Page 12 of 12 9.8. Contractor/Subcontractor Insurance Requirements. Licensee shall not allow any contractor, subcontractor, consultant, or sub- consultant to commence work in connection with the Agreement or any contractor or subcontract entered into by Licensee pursuant thereto unless and until such person(s) and/or entity(ies) have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested in writing by Licensee, the City may, but is in no way obligated to, approve in writing different scopes or minimum limits of insurance for particular (sub)contractors or (sub)consultants. Such policies shall be in favor of Licensee or its contractors and of the City, its officials, officers, agents, and employees and shall be maintained in full force and effect during the life of this Agreement, including any extensions thereto. Said policies shall state by their terms and by accompanying endorsements that they shall not be canceled until City shall have had at least thirty (30) days' notice in writing of such cancellation. Section 10. Notices. Any notices required to be given under this Agreement shall be sent to the following Parties by either U.S. first-class mail postage prepaid or via email as follows and shall be deemed effective three (3) business days after deposit into the U.S. mail or on the date of email delivery so long as the sender does not receive a “bounced email” auto-reply: To LICENSOR: City of San Juan Capistrano Attn: City Clerk’s Office 32400 Paseo Adelanto San Juan Capistrano, CA 92675 E-mail: mmorris@sanjuancapistrano.org To LICENSEE: RIVER STREET MARKETPLACE LLC Attn: Dan Almquist, Manager 31791 Los Rios Street San Juan Capistrano, CA 92675 E-mail: Dan@Almquist.com If Licensee provides Licensor with the name and address of Licensee’s Lender, then Licensor covenants and agrees to concurrently provide such Lender with a copy of any notice given to Licensee. Licensee’s Lender shall have the right to cure any default by Licensee but shall in no event be obligated to do so. In the event any Lender elects to cure a Licensee default hereunder, such Lender shall be given the same cure rights as afforded to Licensee from and after Licensor delivers a written notice of default to such Lender in order to cure the applicable default. Section 11. Entire Agreement. Page 13 of 12 This Agreement sets forth the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings or agreements relating thereto. Section 12. No Oral Modification. No alteration or variation of this Agreement shall be valid or binding unless made in writing and signed by the Parties hereto. Section 13. Successors and Assigns. The rights and obligations of Licensee under this Agreement shall be binding upon and inure to the benefit of the successor owners of the Licensee Property, including by way of example and not by limitation any Lender that takes title to the Licensee Property through foreclosure or deed in lieu of foreclosure or any third-party purchaser at a foreclosure. Licensee may grant a security interest in its rights under this Agreement to any Lender that provides financing for the Licensee Property. This Agreement shall in no event be transferable separately from the Licensee Property. Licensee and any successor owner of the Licensee Property shall be liable for all obligations of such party under this Agreement arising during the period such party owned the Licensee Property, and no transfer or conveyance of the Licensee Property shall release such party from its liability for such obligations; provided, however, such party shall have no liability for matters arising after it ceases to own the Licensee Property. Section 14. Governing Law & Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Venue shall be proper in Orange County. Section 15. Authority. Each signatory hereto warrants to the other Party that it has authority to execute this Agreement on behalf of the Party for whom it purports to sign. This Agreement may be executed in counterparts and when fully executed all such counterparts together shall be deemed to be one and the same instrument. Section 16. Estoppel Certificates. Each Party shall, upon written request from any other Party or a Lender, which request shall quote this Section, execute to the requesting party a written statement in reasonable form as may be proposed by the requesting party (an “Estoppel Certificate”) certifying (i) whether or not this Agreement is modified and whether or not this Agreement is in full force and effect (or, if there have been modifications, stating those modifications), (ii) whether or not, to its actual knowledge, the requesting Party has failed to perform an obligation under this Agreement, and if so, the nature of the failure, and (iii) such other matters as may be reasonably requested by the requesting Party or Lender. No Party Page 14 of 12 shall be obligated to respond to a request to execute an Estoppel Certificate that attempts to modify any of the terms or conditions of this Agreement. An Estoppel Certificate executed by a Party may be relied upon by the other Party(ies) or any transferee or Lender of a Party to which such Estoppel Certificate is addressed so as to estop the Party executing the Estoppel Certificate from asserting the contrary. ### [Signatures on following page] Page 15 of 12 IN WITNESS WHEREOF, the Parties have executed this License Agreement as of the date above first written. Attest: __________________________ Maria Morris, City Clerk LICENSOR: CITY OF SAN JUAN CAPISTRANO a California municipal corporation _____________________________ Benjamin Siegel, City Manager Approved as to Legal Form: BEST BEST & KRIEGER LLP ________________________ Jeffrey S. Ballinger, City Attorney LICENSEE: RIVER STREET MARKETPLACE LLC a California limited liability company ___________________________ Dan M. Almquist, Manager ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) COUNTY OF ) On ________ __, 2023, before me, ____________________________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ______________________________ (SEAL) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) COUNTY OF ) On ________ __, 2023, before me, ____________________________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ______________________________ (SEAL) Exhibit “A” City Property THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: APN: 649-201-03: THAT PORTION OF LOT 11 IN BLOCK 2, AND OF LOT 3 IN BLOCK 3 OF THE TOWNSITE OF SAN JUAN CAPISTRANO AS SHOWN ON A MAP RECORDED IN BOOK 3, PAGES 120 TO 125 INCLUSIVE OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, AND IN THAT PORTION OF RIVER STREET (NOW KNOWN AS ALIPAZ STREET) ADJOINING SAID LOTS 11 AND 3, AS VACATED AND ABANDONED BY ORDER OF THE BOARD OF SUPERVISORS OF ORANGE COUNTY, CALIFORNIA, DATED MAY 11, 1948, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 15, 1948 IN BOOK 1637, PAGE 220 OFFICIAL RECORDS AND RE-RECORDED MAY 21, 1948 IN BOOK 1640, PAGE 545 OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, LYING EASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT IN THE CENTERLINE OF DEL OBISPO STREET AS DESCRIBED IN THE DEED TO THE COUNTY OF ORANGE RECORDED DECEMBER 9, 1943 IN BOOK 1224, PAGE 177 OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, DISTANT THEREON NORTH 82°34'19" EAST 393.48 FEET FROM THE INTERSECTION OF SAID CENTERLINE WITH THE CENTERLINE OF ALIPAZ STREET; THENCE, FROM SAID POINT OF BEGINNING NORTH 7°25'42" WEST 174.21 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 550.00 FEET; THENCE, THROUGH A CENTRAL ANGLE OF 5°22'13" ALONG SAID CURVE, NORTHERLY 51.55 FEET; THENCE, TANGENT TO SAID CURVE NORTH 12°47'55" WEST 404.96 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 1,500 FEET; THENCE, ALONG SAID CURVE, NORTHWESTERLY TO A POINT IN THE NORTHERLY LINE OF SAID LOT 11; THENCE, ALONG SAID NORTHERLY LINE, WESTERLY 15 FEET TO THE BEGINNING OF A NON- TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1,485.00 FEET AND CONCENTRIC WITH SAID 1,500-FOOT RADIUS CURVE, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE, ALONG SAID CURVE, SOUTHEASTERLY TO THE RADIAL THROUGH THE BEGINNING OF SAID 1,500-FOOT RADIUS CURVE WHICH BEARS NORTH 77°12'05" EAST; THENCE, TANGENT TO SAID 1,485-FOOT RADIUS CURVE SOUTH 12°47'55" WEST 366.01 FEET; THENCE, SOUTH 8°26'22" EAST TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 3, AND THE POINT OF ENDING. Exhibit “B” License AREA Map Prepared by C3 Civil Engineering dated, July 18, 2023 Behind this sheet